51 Minn. 213 | Minn. | 1892
Appeal from an order sustaining the defendants' demurrer to the complaint. The case presented in the complaint may be briefly stated as follows:
In April, 1888, in an action prosecuted by Squires and Thompson in the municipal court of Minneapolis against this plaintiff (Gowen) and others, a judgment for the recovery of money was rendered in favor of Squires and Thompson, and against this plaintiff.. A transcript of that judgment was filed in the office of the district court, and execution issued thereon out of the latter court was levied upon cer
In May, 1892, the judgment debtor (this plaintiff) applied to the municipal court to have such judgment against him vacated, and upon such motion that court made its order vacating the judgment, and allowing Gowen to interpose by answer his defense to such action. This order did not in terms purport to set aside or affect the execution sale. This action is brought to have the execution sale set aside, and the record of it and of the conveyance from the purchaser, Cranston, to the defendant Conlow, and of the mortgage of the latter to Marson, declared void, and canceled as clouds upon the plaintiff’s title.
The plaintiff shows no right to have the execution sale avoided, or to call in question the title and interest acquired by the defendants through that sale. It does not appear that the judgment was invalid, for want of jurisdiction, nor even that it was erroneous, nor that the execution sale was in any respect irregular or faulty. It is to be assumed that both the judgment and the execution sale were valid and effectual. The only fact disclosed as the ground for the relief sought is that nearly four years after the execution sale the court in which the judgment was rendered set it aside on motion, for the reason, as it would seem from the terms of the order, that the judgment was rendered against Gowen through some excusable neglect on his part. The question, then, is whether a purchase of real estate by a stranger in good faith, at a valid execution sale, under a valid, not void, judgment, is avoided by a subsequent vacating of the judgment.
It seems to be conceded by the appellant that unless by force of some statute such would not be the effect of the vacating of the judgment, and this undoubtedly is the law. Bank of United States v. Bank of Washington, 6 Pet. 8; Stinson v. Ross, 51, Me. 556; Wood
By Laws 1887, ch. 61, the following proviso was added to 1878 G. S. ch. 66, § 125, — the law allowing the granting of relief (by setting aside judgments, etc.) from the consequences of surprise, mistake, and excusable neglect: “provided, however, that no relief to be granted hereunder shall operate to affect any title to or estate in real estate affected by such judgment, as against a bona fide purchaser or ineumbraneer, in any case where such judgment, or a certified copy thereof, shall have been of record in the office of the register of deeds of the county wherein such real estate is situated for a period not less than three years prior to the date of the application for such relief; but nothing herein contained shall operate to prevent the granting of such relief as may be just and equitable against a party to such action, his heirs or devisees.” This is relied upon by the appellant as subjecting all sales of real estate, under executions, even to strangers, to the liability of being defeated by the subsequent setting aside of the judgment, unless the judgment shall have been on record for three years in the office of the register of deeds.
Such, we think, was not the purpose or effect of this proviso. From its terms it is apparent that this provision relates only to such judgments as both (1) affect the title to real estate, and (2) may be recorded in the office of the register of deeds; and there are not infrequently judgments of this character, having both of these attributes, and to such judgment the statute is plainly applicable. We refer to judgments which in themselves transfer or affect directly the title to real estate. The statute makes provision for the recording of such judgments in the office of the register of deeds. 1878, Gr. 8. eh. 75, § 32. But a judgment merely for the recovery of money has neither of these characteristics. While, upon being docketed, it becomes a lien generally upon the real estate of the debtor, it neither divests his title nor estate, nor does it invest the creditor with any estate or interest in the property; nor is there any authority in the statute for recording such
The structure of the proviso, the form of the enactment, constitutes a further argument against the contention of the appellant. Neither in terms nor by necessary implication does it change the rule of law that an execution sale to a bon« fide purchaser is not avoided by a subsequent reversal of a merely voidable judgment. It does not declare that titles so acquired shall be so defeated. There was no uncertainty as to the existing law. The attention of the lawmakers was directed to the subject of the effect, as to real-estate titles, of the reversal of judgments. Hence, if the purpose of this enactment had been to so completely change (to reverse) the existing law, it is to be presumed that it would have been affirmatively or positively expressed, and not left to at least questionable inference from language the apparent purpose of which was merely to fix a limit of time beyond which titles adjudicated or transferred by judgment should not be affected by the setting aside of such judgments. It is most probable from the circumstances, and is to be presumed, that it was not unintentional that language of qualified meaning and application was used, properly designating judgments which in themselves operated on the title to real property, and which had been recorded in the register’s office.
In Drew v. City of St. Paul, 44 Minn. 501, (47 N. W. Rep. 158,) the judgment was one determining the title, and what was there said had no reference to the very different case of a judgment merely for the recovery of money.
The conclusion follows that the title and mortgage lien acquired by the defendants, respectively, through the execution sale were not •divested or impaired by the setting aside of the judgment. In brief, the complaint shows that the plaintiff’s title was effectually divested;
• As the rights of these parties in respect to the land were not affected by the setting aside of the judgment, it is unnecessary to consider, whether the municipal court had power to set it aside.
Order affirmed.
(Opinion published 53 N. W. Rep. -365.)
